Lee v. Houston , 20 Ala. 301 ( 1852 )

GrOLDTHWAITE, J.

Conceding that, by the common law, courts did not possess the power of amending judgments, at any term after their rendition, there can be no doubt that under the act of 1824, Clay’s Dig. 322, § 55, the Circuit Court has the authority to amend a judgment, at any time within three years after its rendition, by the correction of any clerical error or mistake of the clerk, where there is sufficient matter apparent on the record to amend by. This, we understand, to be conceded, but it is insisted that the record discloses that the action of the court below, in sotting aside the judgment, was not predicated on any mistake or clerical error, and that there was nothing apparent on the face of the .record to amend by; that the act of the court was therefore in reference to a subject matter, of which it had no jurisdiction. We think the fallacjr of this argument consists, in confounding the subject matter of jurisdiction with the evidence which may be required to support it; the statute confers upon courts the power to amend judgments after the term at which they are rendered, and this is jurisdiction; the same statute restricts the exercise of this power to cases in which the evidence shows a clerical error, or mistake of the clerk, and sufficient matter upon the record to a n end by.

The question as to jurisdiction being settled, there is but little difficulty in the case. In King’s, Admr. v. Armstrong, 14 Ala. 293, it was held, that although a summary proceeding against a sheriff for a default, in failing to make the money on an execution, did not survive against an administrator, yet it was competent for him to appear, and make himself a party by consent, and that in such case; the court having jurisdiction of the subject matter and the person, the parties could waive any objection of form, or substance, either to tbe manner in wbicb tbe defendant was brought into court, or in which the cause of action or defence was developed. So in the case under consideration, the jurisdiction of the subject matter, if not conferred by the common law, was given by the statute before referred to; by the appearance of the parties the court obtained jurisdiction of the person, and thus having complete jurisdiction, the consent of the plaintiff in error to the vacation of the judgment, must be considered as a waiver of the proof required by the statute, or as a judicial admission of the facts necessary to authorize the court to set aside the judgment.

After the judgment was set aside, it is clear that the plaintiff below could dismiss his case.

The judgment must be affirmed.